Truck crashes are a unique brand of tragedy that nearly all have one thing in common, they are nearly always preventable. The preventability aspect of a CMV crash is defined as preventable from the CMV driver's actions and/or inactions, and/or the actions and/or inactions of a second vehicle if applicable. Proper investigation must ensue by the Motor Carrier to properly asses fault. This can often be done with the involvement of legal counsel in order to keep the results as being non-discoverable by the Motor Carrier, in all probability.
There are numerous crash cases that I have inspected and opined on from a CMV expert standpoint whereas the Motor Carrier simply got it wrong. As a result their CMV driver continues about his business, sometimes as a menace CMV driver that should never have been hired in the first place, more the exception than the rule.
The FMCSA specifies the definition of a preventable crash in Part 385 - Safety Fitness Procedures whereas it defines two qualifiers: the crash must involve a CMV, and the CMV driver and/or Motor Carrier did all that could be done do to prevent the subject crash:
- § 385.3 Definitions and acronyms. Preventable accident on the part of a motor carrier means an accident (1) that involved a commercial motor vehicle, and (2) that could have been averted but for an act, or failure to act, by the motor carrier or the driver.
This definition is consistent within nearly all industry standard definitions as to preventability in that it points to the professional CMV driver as to what he/she did to avoid being party to the subject crash.
In many cases as to causation, a solid investigation could point to what the CMV driver and/or Motor Carrier did as to a contributing factor hours and/or potentially days to weeks or even months prior to the subject crash.
It is further known that crashes often result from many contributing factors working together to cause the crash. In other words, the act of the physical crash alone is often not the sole cause as typically identified by enforcement personnel that often examine the crash parties issues of potential or likely causation on the crash scene only.
The second part of the puzzle is to examine the CMV driver’s history, Motor Carrier’s safety performance history, in addition to their collective willingness to comply with the Federal Motor Carrier Safety Regulations. As suggested, one additional point of examination is what did the CMV driver do hours to days before the crash. These are all potential contributing factors to a crash that are determining factors as to preventability.
One such example of a preventable crash would be if the CMV driver is fatigued either by his/her own doing and/or the Motor Carrier's inadequate management controls caused him/her to operate the subject CMV beyond the hours permitted as defined in Part 395 of the FMCSR.
Then there is the results of the investigation that point to the driver of the car as to operating their motor vehicle in a negligent manner, where it can be proven the car driver had the last clear and best chance to prevent the subject crash. Again, it still must be considered as to what the CMV driver did or did not do to become party to the crash irrespective of the findings as to the motor vehicles involvement.
If the CMV driver did not act in a prudent manner to avoid the crash a comparative negligence result will almost be for certain.
It is extremely important that a Motor Carrier thoroughly qualify their candidate CMV drivers as this is the very beginning of success and/or failure, the first brick in the foundation of crash preventability.
There are a great number of studies and standards of care in the CMV universe that aid the Motor Carrier in the proper hiring decision. Such examples are the ATRI-LTCCS whereas it gives statistics of a CMV driver's potential for a future crash risk based on past moving violation convictions. There are tools to enlist the assistance of the FMCSA such as PSP (Pre-Employment Screening); the CMV candidate driver's MVA; past Motor Carrier employers referrals; etc.
When an unqualified CMV driver is hired it is without a doubt that when a Plaintiff attorney hires a top flight CMV expert, the facts of the unqualified hire will be exposed, or at least should be.
If the Motor Carrier hires a CDL driver to simply get a warm body in the seat of the CMV just to "turn a wheel", the term of "knew or should have known" may well be used when the CMV driver has been convicted of past speeding violations within a two, three or even a four or five year period prior to the crash of subject. If properly sought after by Plaintiff's counsel, the experienced and highly qualified CMV expert will provide Plaintiff Counsel with terms such as "great weight to [past] violations" as stated in the FMCSR Part 391 - Qualifications of drivers:
- § 391.25 Annual inquiry and review of driving record. (2) motor carrier must consider the driver's accident record and any evidence that the driver has violated laws governing the operation of motor vehicles, and must give great weight to violations, such as speeding, reckless driving, and operating while under the influence of alcohol or drugs, that indicate that the driver has exhibited a disregard for the safety of the public.
To ignore these issues by a Motor Carrier regarding the FMCSR and industry standards of care can be proven detrimental in the civil litigation trial and/or mediation.
When and if it is determined that a CMV crash could have been prevented based on the CMV driver's actions and/or inactions to become party to the crash, and an investigation reveals that the CMV driver has a highly questionable moving violation history, respected standards of care will be brought into the litigation to support this claim.
One such document that will be evidenced by the savoy CMV Expert may very likely be a produced is a white paper written by HireRight whereas it states the following as to negligent hiring and/or negligent retention:
- “Negligent hiring occurs when an employer hires an incompetent or unfit employee who it knows, or by the exercise of reasonable care should have known, was incompetent or unfit and thereby creates an unreasonable risk of harm to others.”
-or-
- “Negligent retention occurs when an employer becomes aware, or should have become aware, of problems with an employee that indicate the employee’s incompetence or unfitness to perform his or her job, but the employer takes no action.”
One such example of a indisputable case as to negligent hiring and retention where I personally handled back a few years ago, a case I knew would never see the inside of a courtroom was a CMV driver that had in a five-year preceding period multiple moving violations: 3 speeding, one of which was over 85-MPH in a 65-MPH zone with a CMV, plus one careless driving. The small Motor Carrier hired him anyway. The crash occurred 44 days after the hiring.
The afore stated crash could have been in all probability a preventable crash avoided simply by saying to the CMV driver candidate, "you are not qualified to our standards". This prudent way of handling the candidate will in all certainty prevent future litigation regarding an unqualified CMV driver if he/she were to be involved in a crash if he/she were in fact hired. In addition, a Motor Carrier should keep a documented file (not FMCSR required) on all rejected candidates to have proof of following prudent practices regarding unqualified CMV driver candidates. This file will be very helpful for Defense counsel come litigation time in so the Motor Carrier can demonstrate best efforts to hire qualified CMV drivers.
There are many other issues that must be acted upon when considering the hiring of a candidate CMV driver according to the FMCSR Part 391. To hire an unqualified CMV driver regardless of his/her recent past is the very beginning of the preventability factor. Therefore a Motor Carrier must consider their hiring parameters and policies wisely.
Scott L. Turner
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